P L D 1967 Supreme Court 42 (PLP)

HAMOODUR RAHMAN, J.‑This appeal has been, filed under Article 58 (2) (c) of the Constitution of the Islamic Republic of Pakistan and it is directed against the judgment and order of a learned Single Judge of the High Court of West Pakistan, Lahore Bench, convicting the appellants herein under sections 2 and 3 of the Contempt of Courts Act and sentencing them to a fine of Rs. 100 each or in default one month's simple imprisonment. The circumstances in which this conviction came to be made may briefly be stated as follows: The respondent No. 2 herein filed a second appeal being

5. A. O. No, 92‑.of 1964 in the High Court. This was dismissed in limine on the 27th of February 1964. He then on the 29th of February 1964, applied for the grant of a certificate of fitness for appeal under clause 10 of the Letters Patent and along with it filed a miscellaneous application (Civil Miscellaneous No. 1241 of 19641 for stay of an order of ejectment passed by the Subordinate Court against him. This application came up for hearing on the 2nd of March 1964. On this date the present appellants were not present in Court. The application was heard ex parte and not only was the certificate granted but also an order for the maintenance of status quo as to possession during the pendency of the Letters Patent Appeal was passed. On this very day it appears that the first‑named appellant, who had already obtained a warrant for the execution of the decree for ejectment, took the bailiff in the morning to the premises in dispute which was a shop room. It was found closed. The appellant then went back to the executing Court and on an application supported by ,the report of the bailiff obtained an order to take possession of the premises by breaking open the lock and/or shutters if need be. The said appellant and the bailiff then returned armed with this order to the shop in question at about 10‑15 a.m. On this occasion they found the second respondent present at the shop. The warrant for possession was shown to him and he was asked to vacate the premises. He refused to do so and it is said that he informed the bailiff and the appellants that he had already obtained a stay order from the High Court. In the meantime someone also informed the Emergency Police and they reached the place. At about 11‑15 a.m., however, Mr. Masud Butt, the learned Advocate who had appeared for the said respondent in the High Court and obtained the stay order, also reached the place and assured the bailiff and others present that he had in fact obtained such a stay order and offered to make an endorsement to that effect on the back of the writ. On receiving this information the bailiff stayed his hands from further executing the order of eject ment and the Police took both the parties to the Police Station to have cross cases registered. Upon these facts the respondent No. 2 applied for the conviction of the appellants for contempt of Court, alleging that the appellant No. 1 and the bailiff had deliberately refused to pay heed to the information that he personally conveyed to there about the passing of the stay order. The appellants, on the other hand, pleaded that as soon as they received authentic information of the passing of the stay order from the learned Advocate concerned in the case they forthwith stayed their hands. There had, therefore, been no violation of the stay order. It was their case that they were not bound to accept the oral statement of the opposite‑party as to the passing of such a stay order, for, it may well be that the opposing party may endeavour to thwart execution by making a false statement. The High Court, however, took the view that knowledge of the stay order howsoever received was sufficient and if after receiving such information the alleged contemners had acted in disregard thereof they were clearly guilty of deliberate and contumacious disregard of the order of the High Court and were, therefore, guilty of contempt. In support of its view the High Court has also placed reliance on a passage from Oswald on Contempts, 1910 Edition, page 203, to the following effect:‑ "In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted if it be proved that he had notice of the order aliunde, as by telegram, or news paper report, or otherwise, and knew that it was intended to be enforced or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made, although he left before the order was pronounced." It is no doubt true that for justifying a committal for breach of a prohibitory order it is not necessary to actually prove service of the order upon the party against whom it has been granted but, we regret, we are unable to accept the contention that any kind of report of such an order will be sufficient to fix the party' with notice of such an order. In a proceeding of a criminal or quasi‑criminal nature it is a fundamental rule that before a person can be saddled with the penal consequences of a bread of an order he must at least be shown to have had some definite and authentic information of the nature of the order which he is alleged to have violated. What amount of proof will be sufficient to fix a person with such knowledge will of course depend on the, facts and circumstances of each case but this much can safely be stated that the mere verbal assertion of a rival party can hardly be regarded as sufficient for this purpose. In our opinion, ii would be placing a party in a very difficult position if he is not. held to be entitled to insist that the information conveyed should be of an authentic nature which he ought to accept as reliable. Otherwise valuable rights of parties under decrees of orders of Courts may well be defeated by mere oral assertions of any man in the street that the order sought to be executed has been stated by a superior Court. It cannot, therefore, be said that the appellants had acted in any unreasonable manner refusing to accept the ipse dixit of the opposite‑party or in insist ing upon the production of authentic proof of the order having been made. It is significant that in this case as soon as the learned Advocate, who appeared to obtain the stay order in the High Court, gave the information that such a stay order bad been made and offered to make such an endorsement on the back of the warrant, the appellants immediately stayed their hands anti did dot proceed any further with the execution. This does. not show that they were minded either to deliberately flout the stay order granted by the High Court or to show any contumacious disregard thereof. As has been pointed out by this Court in more than one cast this jurisdiction to punish by such a short‑handed method should be exercised with circumspection only in extreme cases upon clear proof of a wilful disregard. In the present case such proof was not only plainly lacking but, on the other hand, the evidence disclosed that as soon as authentic information was received the execution was not proceeded with and there was in fact violation of the stay order. We are unable, therefore, to agree with the learned Judge of the High Court that the oral information conveyed by the opposite‑party was sufficient to fix the appellants with the knowledge of the stay order or that the appellants can be held to have committed contempt of Court by disregarding such an oral assertion by a rival party. Learned counsel appearing for the State has also found, it difficult to support the order of the High Court. For the reasons given above we are of the view that this appeal must be allowed but since the appellant Syed Ahmad Shah has died during the of the appeal his appeal has abated and will be declared to have so abated. The conviction and the sentence of the other appellant will, however, be set aside and he will be acquitted. The fine, if already realized from him, will also be refunded to him. A. H. Appeal allowed.